A frustrated Supreme Court to look at one version of judge shopping

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The U.S. Supreme Court will hear a case involving judge shopping. / Getty Images

The Supreme Court said Monday it would weigh in on at least one version of what is derisively called “judge shopping.” That is the phenomenon of plaintiffs going to great lengths to file cases with judges they think are sympathetic to their views.

Both liberal and conservative lawyers have “judge-shopped” to one degree or another. But in recent years, business interests, conservative groups, and some red state attorneys general have been laser focused on bringing their challenges in the Fifth Circuit Court of Appeals, which covers Louisiana, Texas, and Mississippi. Of the 17 active judges on that appeals court, 12 are Republican appointees, half of whom are Trump appointees.

In short, it is easily the most conservative federal appeals court in the country, and the preferred circuit for conservative plaintiffs. "This isn't exactly judge shopping," observes Georgetown University law professor Stephen Vladeck. "It's circuit shopping."

Indeed, nearly a quarter of the cases—23.4%—the Supreme Court has targeted for review this term so far come from the Fifth Circuit, according to Vladeck. And several justices have, by innuendo, expressed frustration about the circuit's aggressive behavior.

The latest dispute that the Supreme Court has now agreed to hear involves a challenge to regulations issued by the EPA under the Clean Air Act. But the question is not the merits of those regulations. Rather, it is whether those challenging the regulations, in this case conservative groups, can essentially bring their regulatory challenges in the appeals courts of their choice, most often, of late, in the Fifth Circuit.

The Biden administration contends that federal law mandates that such “national questions” be litigated in the U.S. Court of Appeals for the District of Columbia, which is supposed to deal with regulatory issues that are "nationally applicable."

In a similar case, the Tenth Circuit Court of Appeals agreed with the administration and transferred the case to the D.C. Circuit. That set up a conflict that the Supreme Court will now hear later this term. And it affords the court another opportunity, perhaps, to send a message to the Fifth Circuit.

Four members of the current court—Chief Justice John Roberts and Justices Clarence Thomas, Brett Kavanaugh, and Ketanji Brown Jackson, previously served on the D.C. Circuit. Of those, Kavanaugh served by far the longest—12 years—while the others served for relatively short periods of time before being nominated to the high court.